In Depth

In 2013, the Defense Trial Counsel of Indiana’s Amicus Committee participated
in a number of interesting appeals. The cases DTCI became involved in this year addressed a variety of issues, including the
naming of criminal assailants as nonparties in premises liability cases; naming an independent physician as a party in a case
which is brought against a hospital where the suit is based upon the independent physician’s allegedly negligent acts
or omissions; and the issue of whether Indiana’s General Wrongful Death Statute, Indiana Code § 34-23-1-1, allows
attorney fees when there is/are no surviving spouse or dependents.

If you wish to request DTCI’s participation as amicus in your appeal, please do not hesitate to contact me. While DTCI
does not become involved as amicus in each case in which its involvement is requested, the Amicus Committee carefully considers
each request and values the opportunity to work with defense counsel throughout Indiana on the variety of issues which are
presented on appeal.

Indiana Supreme Court cases

DTCI participated as amicus this past year in Santelli v. Rahmatullah and Super 8 Motel, 993 N.E.2d 167 (Ind. 2013),
a very important case in which the defense bar ultimately prevailed. Santelli, which involved the “very duty
doctrine” and the question of joint and several liability, pertained to the issue of whether, in a premises liability
case in which the victim was murdered, the premises owner could name the criminal assailant as a nonparty. Frost Brown Todd’s
Lucy Dollens, co-recipient of this year’s DTCI Defense Lawyer of the Year Award (and a valued member of the Amicus Committee),
authored two briefs in this case: both the amicus brief which was filed in the Indiana Court of Appeals and the brief in support
of the petition to transfer which was filed in the Indiana Supreme Court. Among other things, DTCI argued in is briefing that
the Court of Appeals’ decision, were it to stand, would thrust upon defendants, who or which were the least responsible
or culpable, the responsibility for far more than their share of the damages which are awarded at trial. The case was orally
argued on Valentine’s Day. On Aug. 28, 2013, the Indiana Supreme Court handed down its opinion agreeing with the position
taken by DTCI. The Indiana Supreme Court unanimously held, among other things, that the Indiana Comparative Fault Act does
not preclude the allocation of fault between negligent and intentional tortfeasors.

DTCI also chose to participate as amicus in Amburgey v. Columbus Regional Hospital, 976 N.E.2d 709 (Ind. Ct. App.
2012). In Amburgey, the Indiana Court of Appeals had held that a plaintiff is not required to name an independent
physician as a party in a case which is brought against a hospital where the suit is based upon the independent physician’s
allegedly negligent acts or omissions. DTCI member R. Thomas Bodkin, a former president and diplomat of the Defense Trial
Counsel of Indiana, filed an amicus brief in support of the defendant hospital’s petition to transfer. On March 14,
2013, the Indiana Supreme Court denied the petition to transfer which DTCI supported. While DTCI did not ultimately prevail
in Amburgey, the Amicus Committee thanks attorney Bodkin for his dedication and his hard work.

Indiana Court of Appeals cases

DTCI also filed an amicus brief this year in the Indiana Court of Appeals in Frederick v. SCI Propane, a wrongful-death
case in which the trial court awarded the decedent’s estate $2.5 million dollars in attorney fees (on a $3.7 million
dollar settlement reached post-verdict). The decedent was survived by a spouse and minor child. On appeal, defense counsel
Kent M. Frandsen (Parr Richey Obremskey Frandsen & Patterson) argued, among other things, that the General Wrongful Death
Statute, Indiana Code § 34-23-1-1, only allows attorney fees when there is no surviving spouse or dependent. I authored
DTCI’s amicus brief arguing that attorney fees are not recoverable under Indiana’s General Wrongful Death Statute
because the section of the statute that is applicable where a decedent leaves a surviving spouse or dependent does not expressly
mention attorney fees and attorney fees are not “of the same genre” as the recoverable damages which are specifically
listed in the statute.

Thanks to committee members, brief writers and the board

The Amicus Committee appreciates and thanks the attorneys who author amicus briefs and who worked with the attorneys for
the parties which DTCI as an organization supported. The committee very much appreciates the DTCI board of directors and its
members’ continued support.

I personally want to thank the other members of the committee for their diligence and commitment to the committee’s
work. The current members of the Amicus Committee are Michele Bryant (Kahn Dees Donovan & Kahn); Lucy Dollens (Frost Brown
Todd); Michael Dugan (Dugan & Voland); Daniel Glavin (O’Neill McFadden & Willett); Edward Harney (Hume Smith
Geddes Green & Simmons); Phil Kalamaros (Hunt Suedhoff Kalamaros); Peter H. Pogue (Schultz & Pogue), a long-time member
of DTCI who has authored a number of amicus briefs in the past, who I am pleased to report joined the Amicus Committee this
year; Crystal Rowe (Kightlinger & Gray), and Donald B. Kite Sr. (Wuertz Law Office).

• Donald B. Kite Sr., of counsel with The Wuertz Law Office LLC in Indianapolis, is the chair of
DTCI’s Amicus Committee. The opinions expressed are those of the author.

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